June 6, 2006

The Supreme Court agreed on Monday to rule on what measures, if any, public school systems may use to maintain racial balance in individual schools....

The action came three years after the court upheld a racially conscious admissions plan at the University of Michigan Law School. Writing for the majority in that 5-to-4 decision, Grutter v. Bollinger, Justice Sandra Day O'Connor suggested that, at least in higher education, affirmative action might be necessary for another 25 years.

Greenhouse notes that the back in December, before Alito replaced O'Connor, the Court denied cert in a similar case. That is, it seemed as though there were not four Justices who were ready to go back to the issue that so recently roiled the Court in Grutter and now there are.

Briefs are now likely to pour into the court in advance of a November argument; the University of Michigan case drew more than 100 briefs. But one of the more influential analyses may prove to be a brief concurring opinion in the Seattle case by Judge Alex Kozinski, the Ninth Circuit judge whose views carry great weight among legal conservatives.

Describing the Seattle plan as one "that gives the American melting pot a healthy stir without benefiting or burdening any particular group," Judge Kozinski addressed the Supreme Court justices directly, on the assumption that they would soon be reviewing the decision.

"There is much to be said for returning primacy on matters of educational policy to local officials," he said.

Grutter had a similar theme appealing to conservatives: leave university officials alone to shape policy as they think is right, as they look at complex factors. This is not just a matter of deferring to education experts. It's a recognition that courts may not be able to make better decisions and that more litigation will drain resources that can be better spent elsewhere.

There are many differences between universities and early schooling however. Young children are compelled to attend school, and parents care a lot about sending their children to a nearby school. We can easily understand why they feel wronged when their child is turned away from the nearest school explicitly because of race, especially in a city (like Seattle) that never practiced segregation.

But there is local government, and these parents had their chance to participate in it and lost. The question is whether they should be able to enlist courts in the project of changing the policy produced by that democratic process. Can you say that they should without repudiating Grutter?

17 comments:

I cannot fault that analysis and would not be unhappy if the Supreme Court used it. I do think that any kind of public race discrimination is reprehensible, particularly at al level of schooling for which attendance is compuslory. "No state shall...deny to any person within its jurisdiction the equal protection of the laws," which is what you are doing when you tell people they can't go to a certain public school because of the color of their skin.

Note: gay marriage people, this doesn't apply to you so don't even get started. To begin with, as I have stated ad infinitum, gay marriage is not illegal, and gay marriage does not rise to the level of scrutiny necessary for discrimination involving skin color or gender or religion.

Having said all this, I would not be altogether unhappy if affirmative action decisions were left up to communities.

Would this be legal the other way? Say school district selects white students over black for advanced courses, because black students statisticly do not graduate at the same rates as whites, so why watse the resources?

Bring it on, gay marriage people. Tell us how a large Southern man in a KKK Grand Dragon get-up is standing at the, uh, whatever door there he is standing at, telling you you can't get married because you are gay. And tell us you face hideous discrimination. Not for nothing are gay people in this country among the lowest paid and least educated in our society.

Yes, tell us all how gays have been kicked and enslaved and beaten down by, uh, whoever it is that has done it. Tell us how you feel the pain of African-Americans and people with disabilities and the meek, because you have been beset my discrimination and prejudice such as the world has never known.

Let's! (and let's refrain from mentioning who brought up the gm people in the first place).

I've never been able to get too upset about affirmative action in theory or practice. But this is about early education so I'm not sure if AA is the real issue.

In theory I'm in favor of children going to school with people who are and aren't like them*. How to do this equitably so that it's not a burden to anyone is complicated and I don't pretend to have many (any) answers.

*To date myself a little, I was in elementary school when the local schools were integrated. I'm very glad that happened. Seeing how the white teachers dealt with having black kids in class for the first time was very educational (so was the reaction of lots of people I thought I knew).

"It is difficult to deny the importance of teaching children, during their formative years, how to deal respectfully and collegially with peers of different races. Whether one would call this a compelling interest or merely a highly rational one strikes me as little more than semantics. The reality is that attitudes and patterns of interaction are developed early in life and, in a multicultural and diverse society such as ours, there is great value in developing the ability to interact successfully with individuals who are very different from oneself. It is important for the individual student, to be sure, but it is alsovitally important for us as a society. . . .

"When the Supreme Court does review the Seattle plan, or one like it, I hope the justices will give serious thought to bypassing strict—and almost always deadly—scrutiny, and adopt something more akin to rational basis review. Not only does a plan that promotes the mixing of races deserve support rather than suspicion and hostility from the judiciary, but there is much to be said for returning primacy on matters of educational policy to local officials."

It's problematic. I grew up in a one high-school town and I felt that was a great experience. But it was great for ME. Most of the people I grew up with seem really parochial to me now.

The bottom line is, if you enroll a black kid over a white kid, or a white kid over a black kid, you are discriminating based on race. That's the result, and it's a bad result, along with whatever other positive results may obtain.

It strikes me as wrong that federal money or state money or local money is being used to fund this. But, if it is, it would be best to keep decisions at the absolute community and local level, where people really can make a difference with their votes, and vote with their feet.

I don't know any of the details of the Seattle case, but the San Francisco Chronicle had an interesting story about how increased school choice for students and parents had "resegregated" the city's schools. Link: tinyurl.com/rkswb.

Some people (though not the parents making school decisions) portrayed this as a real problem. Maybe it's a social problem, but is it a legal one? The whole point of the story is that people aren't being forced to anything against their will.

Once upon a time, state-sponsored segregation prevented black students from attending white universities or staying in white hotels. Now "segregation" is what happens when people do exactly what they want. Hmmm....

Here's the thing. What happens when a little magnet school in Los Angeles run by a radical Latino separatist wants to allow no kids of non-Mexican/original North American origin? What would happen if the people of Marin said we've got too many Asians in our schools? Or what would happen when the School Board in Waukegan decides that it has a little too much diversity, thank you very much, and starts giving points for whiteness?

The more I consider this, the more I come back to the conclusion that on race, all preference backed by State action is bad. It's such a slippery slope.

The error starts by believing the state can solve the inherent tendency for people to form groups based on factors such as interest, wealth, appearance, or politics. It is this exclusivity that many Americans oppose.

While the concept is laudable, the state is simply unable to solve this human pattern, not without coercion that will not only be resisted, but result in unintended dysfunction.

Hence the balkanization of student identity groups in colleges, which do not enhance diversity, but instead solidify differences.

"The question is whether they should be able to enlist courts in the project of changing the policy produced by that democratic process."

Which to me explains the whole conservative resurgence. Yes, when the will of the people is wrong, use the courts, but now it's a strategy to use the courts if you think you're going to lose with the democratic process.

Your hypothetical is already occurring in the San Francisco Bay area. It was a Chinese family who most recently sued the San Francisco school system over its diversity policies, and the University of California, especially Berkeley, long worked hard to keep the number of Asian students down in the name of diversity.

Judge Kozinski addressed the Supreme Court justices directly, on the assumption that they would soon be reviewing the decision. -- "There is much to be said for returning primacy on matters of educational policy to local officials," he said.

Yep. Just read a selection of Southern newspaper editorials on education from say, 1954 to 1964, and you'll see there's a lot to be said for it. People in favor of discrimination based on skin color always want strict scrutiny to be kept far away from it, in favor of local control and local decisions.

It was surprising to see the SCOTUS take these two cases. When they ultimately get decided, I suspect they will turn on fine factual distinctions between these cases and Grutter. In Grutter, the Law School supposedly treated race as just one factor among many, it was all mushy and soft focus, etc. In these high school cases, at least from the summaries I saw today, race is used as the "tie breaker," when the school system has to pick between two otherwise indistinguishable candidates, and so by definition is the deciding factor. It seems clear that race was used in that way to maintain a pre-set level of "diversity." It sounds like these cases are getting awfully close to the "q" word.

The only real question is how Alito will vote -- like O'Connor (and if so, probably for stare decisis reasons) or like Roberts/Rehnquist? I suspect he will use some distinction in the facts to arrive at a different result from Grutter, but without overruling Grutter.

Perhaps part of the reason why the SCOTUS took these two cases is that they don't have enough in terms of caseload to fill up next fall's argument calendar. After all, they are a court, and the business of courts is to decide cases. Perhaps someone noticed that they were low on their inventory of raw materials -- they haven't granted cert in enough cases to keep themselves busy next fall!